“Do professionals have to forward all purchase offers received? », Quentin Lagallarde

Real estate professionals adopt two schools of thought when it comes to transmitting purchase offers to sellers: transmitting all offers as soon as they are received or transmitting them one by one after having exhausted the previous one. Analysis and elements of response.

The question of the transmission of offers is recurrent among professionals. Some believe that the first offer received must be presented to the seller, discussed and negotiated and that in the event of refusal, the following ones are treated in the same way; others show all offers received, as they come in until an offer has been accepted by the seller.

Let's start first with a reminder of the regulatory and ethical framework of the profession. The first paragraph of article 77 of the decree of July 20, 1972 provides that the professional must within a maximum of eight days inform his principal of the accomplishment of his mission (mandate to sell or buy). 4° of article 8 of the decree of August 28, 2015 on the professional code of ethics provides that the professional must report and keep informed as soon as possible of the accomplishment of his mission. Thus, on these regulatory bases, the professional referred to in article ¹ of the HOGUET law must send the offers as soon as possible to his selling principals.

Then, we must consider the powers given in the mandate by the principal; Does the mandate include a power of representation or not? This point has already been dealt with in the columns of the Journal de l'Agence, but let us simply recall that the mandate may include a representation clause under the terms of which the professional may go so far as to accept an offer and sign the promise on behalf of his client; just like a management mandate; but most of the time, the mandates do not include such a clause and are simply intermediary mandates which leave the seller free to choose the offer that suits him.

In the case of the mandate with representation clause, the real estate agent has a professional duty to analyze the offers received and to take responsibility for choosing the one that will have the best chance of leading to authentic reiteration while presenting the better guarantees. This solution can be heavy with responsibility for the professional.

In the case of the simple intermediary mandate, which is most often used, it is the selling principal who will choose the offer which will present the greatest chance of leading to the final sale of the property, assisted of course by the professional and its duty to advise.

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This is the case that needs to be further detailed and analysed. In practice, it sometimes happens that professionals receive several offers simultaneously on the same property; regardless of the question of price and terms offered.

Some choose to present and “exhaust” the first offer before possibly presenting the following ones in the event of the seller's refusal to accept the first. What is the risk of not presenting the other offers when the professional's mission is to present the goods, collect the offers and transmit them? The legitimate interest of the seller is to have the best chance of being able to sell his property. Competing offers can provide better guarantees of outcome such as the absence of recourse to a loan, or even an offer arriving temporarily after the first can offer a much higher price than this one. What happens in case of "retention" of offers? Isn't the professional causing his client to lose the chance of receiving a better price or better guarantees of the outcome of the sale?

The professional is indebted to duties of transparency, loyalty, information and advice. Not informing a selling principal of competing offers would constitute a fault which could engage the liability of the professional in the event of loss of chance of being able to obtain better conditions of sale, for example.

On the side of the Civil Code, article 1991 provides that: “The agent is required to fulfill the mandate as long as he remains responsible for it, and is liable for any damages that may result from his non-execution. Thus, as long as the principal has not accepted a purchase proposal, the agent must continue his mission and present him with any other offers.

From this analysis, we can also retain that buyers wishing to make a purchase offer at conditions superior to the mandate should not be ruled out either.

In conclusion, let's not forget that the real estate agent is commissioned by his seller and in this respect has duties towards him. He has a duty to forward all offers to his principal; the practice of withholding to exhaust the offers one by one is potentially at fault with regard to the principal in that it may deprive him of the chance of obtaining better conditions (price or guarantee of seeing the sale made).